How CEQA and the HAA Became “Super”

In yesterday’s post, we asserted that the recent denial of a downtown housing project in San Francisco portends a generational clash of super-statutes, with the California Environmental Quality Act (CEQA) facing off against the state’s Housing Accountability Act (HAA). In subsequent posts, we will explore the particulars of the CEQA-HAA conflict, as illustrated by the saga of the San Francisco project. Today, however, our goal is simply to show that CEQA and the HAA both have plausible claims to being super-statutes, which is what makes the clash between them so arresting.

Recall Eskridge and Ferejohn’s definition. A super-statute is a law that:

(1) seeks to establish a new normative or institutional framework for state policy and (2) over time does “stick” in the public culture such that (3) the super-statute and its institutional or normative principles have a broad effect on the law—including an effect beyond the four corners of the statute.

The first half of today’s post explains how CEQA became a superstatute in the 1970s, and muscled a precursor of the HAA into near-oblivion. The second half takes up the HAA and shows how it’s becoming “super” today.

The California Environmental Quality Act

Enacted in 1970, a year after Congress passed the National Environmental Policy Act, CEQA heralded a transition from Governor Pat Brown’s California -- a land of burgeoning highways, dams, and suburbs – to the slow-growth California that his son, Jerry, would preside over. Whether the Legislature intended CEQA to be a super-statute is open to debate, but, looking back, it’s clear that CEQA did “establish[] a new normative [and] institutional framework for state policy,” and that the framework “stuck in the public culture” and had “a broad effect on the law.”

Two early judicial decisions launched CEQA on its path to super-ness. In Friends of Mammoth v. Bd. of Supervisors, the California Supreme Court gave a “broad interpretation to the act's operative language” and extended CEQA to cover private activities (such as homebuilding) that require public permits. Next came No Oil, Inc. v. City of Los Angeles, which held that CEQA requires preparation of a full environmental impact report “whenever it can be fairly argued ... that the project may have a significant environmental impact,” not just where the project is likely to have “important” or “momentous” impacts.

Beyond their immediate holdings, Friends of Mammoth and No Oil stood for a larger principle: that CEQA should be construed broadly and purposefully to give “the fullest possible protection” to the environment. Although the Legislature has often tinkered with CEQA, it hasn’t challenged this foundational maxim, which courts continue to invoke to this day.

CEQA has certainly had a “broad effect on the law--including an effect beyond the four corners of the statute.” The best example is the courts’ reliance on CEQA to disembowel the Permit Streamlining Act of 1977 (PSA), which was something of a precursor to the Housing Accountability Act.

The PSA originally required cities to approve or deny applications for a “development project” within one year of receiving a complete application, on pain of the project being “deemed approved” as a matter of law. The Act did not expressly state that an agency’s failure to complete environmental review within the one-year period would result in the project’s constructive approval, but everything about the statute suggests that this was the Legislature’s intention.

Yet when courts confronted the question of whether a development project could be deemed approved by operation of the PSA notwithstanding the agency’s failure to complete and certify an environmental impact report, they answered with a perfunctory no. Automatic approval in such circumstances would be an unthinkably “drastic” result, the Court of Appeal said, and because the Legislature “did not mention EIR certification in the [PSA’s] automatic approval provisions,” the court refused to countenance it. The gravitational pull of the superstatute, CEQA, overwhelmed what should have been a fairly easy inference from the text and structure of the PSA.

In a later case, the Court of Appeal held that CEQA’s time limits could be enforced by mandamus -- if a city sits for years on a completed environmental impact report without taking official action to certify or disapprove it. But this gesture at the enforceability of the one-year deadline for completing EIRs was gravely undermined by another Court of Appeal decision, Schellinger Bros. v. City of Sebastopol. Schellinger held that courts may not order a city to certify an environmental impact report (as opposed to ordering the city to make up its mind about whether to certify it). Even more damningly, Schellinger held that the project applicant had, by cooperating with the city well past the one-year deadline, forfeited its right to enforce CEQA’s deadlines.